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Page 1 of 2 This is the "Sensenbrenner Bill", also known as HR 4437 or the `Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005'. We have prepared a thorough FAQ that answers most questions about this bill, which you can access by clicking here. You can use your browser's search feature to find key parts of the bill. Click here to go straight to the Employer Sanctions language of the Bill.
HR 4437 EH
109th CONGRESS
1st Session
H. R. 4437
AN ACT
To amend the Immigration and Nationality Act to strengthen enforcement of the immigration laws, to enhance border security, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005'.
(b) Table of Contents- The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. State defined.
Sec. 3. Sense of Congress on setting a manageable level of immigration.
TITLE I--SECURING UNITED STATES BORDERS
Sec. 101. Achieving operational control on the border.
Sec. 102. National strategy for border security.
Sec. 103. Implementation of cross-border security agreements.
Sec. 104. Biometric data enhancements.
Sec. 105. One face at the border initiative.
Sec. 106. Secure communication.
Sec. 107. Port of entry inspection personnel.
Sec. 108. Canine detection teams.
Sec. 109. Secure border initiative financial accountability.
Sec. 110. Border patrol training capacity review.
Sec. 111. Airspace security mission impact review.
Sec. 112. Repair of private infrastructure on border.
Sec. 113. Border Patrol unit for Virgin Islands.
Sec. 114. Report on progress in tracking travel of Central American gangs along international border.
Sec. 115. Collection of data.
Sec. 116. Deployment of radiation detection portal equipment at United States ports of entry.
Sec. 117. Consultation with businesses and firms.
Sec. 118. Sense of Congress regarding enforcement of immigration laws.
Sec. 119. Securing access to border patrol uniforms.
Sec. 120. US-VISIT.
Sec. 121. Voluntary relocation program extension.
Sec. 122. Completion of background and security checks.
TITLE II--COMBATTING ALIEN SMUGGLING AND ILLEGAL ENTRY AND PRESENCE
Sec. 201. Definition of aggravated felony.
Sec. 202. Alien smuggling and related offenses.
Sec. 203. Improper entry by, or presence of, aliens.
Sec. 204. Reentry of removed aliens.
Sec. 205. Mandatory sentencing ranges for persons aiding or assisting certain reentering aliens.
Sec. 206. Prohibiting carrying or using a firearm during and in relation to an alien smuggling crime.
Sec. 207. Clarifying changes.
Sec. 208. Voluntary departure reform.
Sec. 209. Deterring aliens ordered removed from remaining in the United States unlawfully and from unlawfully returning to the United States after departing voluntarily.
Sec. 210. Establishment of the Forensic Documents Laboratory.
Sec. 211. Section 1546 amendments.
Sec. 212. Motions to reopen or reconsider.
Sec. 213. Reform of passport, visa, and immigration fraud offenses.
Sec. 214. Criminal detention of aliens.
Sec. 215. Uniform statute of limitations for certain immigration, naturalization, and peonage offenses.
Sec. 216. Conforming amendment.
Sec. 217. Inadmissibility for passport and immigration fraud.
Sec. 218. Removal for passport and immigration fraud.
Sec. 219. Reduction in immigration backlog.
Sec. 220. Federal affirmation of assistance in the immigration law enforcement by States and political subdivisions of States.
Sec. 221. Training of State and local law enforcement personnel relating to the enforcement of immigration laws.
Sec. 222. Financial assistance to State and local police agencies that assist in the enforcement of immigration laws.
Sec. 223. Institutional Removal Program (IRP).
Sec. 224. State Criminal Alien Assistance Program (SCAAP).
Sec. 225. State authorization for assistance in the enforcement of immigration laws encouraged.
TITLE III--BORDER SECURITY COOPERATION AND ENFORCEMENT
Sec. 301. Joint strategic plan for United States border surveillance and support.
Sec. 302. Border security on protected land.
Sec. 303. Border security threat assessment and information sharing test and evaluation exercise.
Sec. 304. Border Security Advisory Committee.
Sec. 305. Permitted use of Homeland Security grant funds for border security activities.
Sec. 306. Center of excellence for border security.
Sec. 307. Sense of Congress regarding cooperation with Indian Nations.
Sec. 308. Communication between government agencies and the Department of Homeland Security.
Sec. 309. Red Zone Defense Border Intelligence Pilot program.
TITLE IV--DETENTION AND REMOVAL
Sec. 401. Mandatory detention for aliens apprehended at or between ports of entry.
Sec. 402. Expansion and effective management of detention facilities.
Sec. 403. Enhancing transportation capacity for unlawful aliens.
Sec. 404. Denial of admission to nationals of country denying or delaying accepting alien.
Sec. 405. Report on financial burden of repatriation.
Sec. 406. Training program.
Sec. 407. Expedited removal.
Sec. 408. GAO study on deaths in custody.
Sec. 409. Report on apprehension and detention of certain aliens.
Sec. 410. Listing of immigration violators in the National Crime Information Center database.
TITLE V--EFFECTIVE ORGANIZATION OF BORDER SECURITY AGENCIES
Sec. 501. Enhanced border security coordination and management.
Sec. 502. Office of Air and Marine Operations.
Sec. 503. Shadow Wolves transfer.
TITLE VI--TERRORIST AND CRIMINAL ALIENS
Sec. 601. Removal of terrorist aliens.
Sec. 602. Detention of dangerous aliens.
Sec. 603. Increase in criminal penalties.
Sec. 604. Precluding admissibility of aggravated felons and other criminals.
Sec. 605. Precluding refugee or asylee adjustment of status for aggravated felonies.
Sec. 606. Removing drunk drivers.
Sec. 607. Designated county law enforcement assistance program.
Sec. 608. Rendering inadmissible and deportable aliens participating in criminal street gangs; detention; ineligibility from protection from removal and asylum.
Sec. 609. Naturalization reform.
Sec. 610. Expedited removal for aliens inadmissible on criminal or security grounds.
Sec. 611. Technical correction for effective date in change in inadmissibility for terrorists under REAL ID Act.
Sec. 612. Bar to good moral character.
Sec. 613. Strengthening definitions of `aggravated felony' and `conviction'.
Sec. 614. Deportability for criminal offenses.
Sec. 615. Declaration of Congress.
Sec. 616. Report on criminal alien prosecution.
Sec. 617. Determination of immigration status of individuals charged with Federal offenses.
Sec. 618. Increased criminal penalties for document fraud and crimes of violence.
Sec. 619. Laundering of monetary instruments.
TITLE VII--EMPLOYMENT ELIGIBILITY VERIFICATION
Sec. 701. Employment eligibility verification system.
Sec. 702. Employment eligibility verification process.
Sec. 703. Expansion of employment eligibility verification system to previously hired individuals and recruiting and referring.
Sec. 704. Basic pilot program.
Sec. 705. Recruitment and referral.
Sec. 706. Penalties.
Sec. 707. Report on Social Security card-based employment eligibility verification.
Sec. 708. Extension of preemption to required construction of day laborer shelters.
Sec. 709. Effective date.
Sec. 710. Limitation on verification responsibilities of Commissioner of Social Security.
Sec. 711. Report on employment eligibility verification system.
TITLE VIII--IMMIGRATION LITIGATION ABUSE REDUCTION
Sec. 801. Board of Immigration Appeals removal order authority.
Sec. 802. Judicial review of visa revocation.
Sec. 803. Reinstatement.
Sec. 804. Withholding of removal.
Sec. 805. Certificate of reviewability.
Sec. 806. Waiver of rights in nonimmigrant visa issuance.
Sec. 807. Clarification of jurisdiction on review.
Sec. 808. Fees and expenses in judicial proceedings.
TITLE IX--PRESCREENING OF AIR PASSENGERS
Sec. 901. Immediate International Passenger Prescreening Pilot program.
TITLE X--FENCING AND OTHER BORDER SECURITY IMPROVEMENTS
Sec. 1001. Findings.
Sec. 1002. Construction of fencing and security improvements in border area from Pacific Ocean to Gulf of Mexico.
Sec. 1003. Northern border study.
Sec. 1004. Sense of the Congress.
TITLE XI--SECURITY AND FAIRNESS ENHANCEMENT
Sec. 1101. Short title.
Sec. 1102. Elimination of diversity immigrant program.
TITLE XII--OATH OF RENUNCIATION AND ALLEGIANCE
Sec. 1201. Oath of renunciation and allegiance.
TITLE XIII--ELIMINATION OF CORRUPTION AND PREVENTION OF ACQUISITION OF IMMIGRATION BENEFITS THROUGH FRAUD
Sec. 1301. Short title.
Sec. 1302. Findings.
Sec. 1303. Structure of the Office of Security and Investigations.
Sec. 1304. Authority of the Office of Security and Investigations to investigate internal corruption.
Sec. 1305. Authority of the Office of Security and Investigations to detect and investigate immigration benefits fraud.
Sec. 1306. Increase in full-time Office of Security and Investigations personnel.
Sec. 1307. Annual report.
Sec. 1308. Investigations of fraud to precede immigration benefits grant.
Sec. 1309. Elimination of the Fraud Detection and National Security Office.
Sec. 1310. Security fee.
SEC. 2. STATE DEFINED.
In titles I, III, IV, and V of this Act, the term `State' has the meaning given it in section 2(14) of the Homeland Security Act of 2002 (6 U.S.C. 101(14)).
SEC. 3. SENSE OF CONGRESS ON SETTING A MANAGEABLE LEVEL OF IMMIGRATION.
It is the sense of Congress that the immigration and naturalization policy shall be designed to enhance the economic, social and cultural well-being of the United States of America.
TITLE I--SECURING UNITED STATES BORDERS
SEC. 101. ACHIEVING OPERATIONAL CONTROL ON THE BORDER.
(a) In General- Not later than 18 months after the date of the enactment of this Act, the Secretary of Homeland Security shall take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States, to include the following--
(1) systematic surveillance of the international land and maritime borders of the United States through more effective use of personnel and technology, such as unmanned aerial vehicles, ground-based sensors, satellites, radar coverage, and cameras;
(2) physical infrastructure enhancements to prevent unlawful entry by aliens into the United States and facilitate access to the international land and maritime borders by United States Customs and Border Protection, such as additional checkpoints, all weather access roads, and vehicle barriers;
(3) hiring and training as expeditiously as possible additional Border Patrol agents authorized under section 5202 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458); and
(4) increasing deployment of United States Customs and Border Protection personnel to areas along the international land and maritime borders of the United States where there are high levels of unlawful entry by aliens and other areas likely to be impacted by such increased deployment.
(b) Operational Control Defined- In this section, the term `operational control' means the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.
(c) Report- Not later than one year after the date of the enactment of this Act and annually thereafter, the Secretary shall submit to Congress a report on the progress made toward achieving and maintaining operational control over the entire international land and maritime borders of the United States in accordance with this section.
SEC. 102. NATIONAL STRATEGY FOR BORDER SECURITY.
(a) Surveillance Plan- Not later than six months after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the appropriate congressional committees a comprehensive plan for the systematic surveillance of the international land and maritime borders of the United States. The plan shall include the following:
(1) An assessment of existing technologies employed on such borders.
(2) A description of whether and how new surveillance technologies will be compatible with existing surveillance technologies.
(3) A description of how the United States Customs and Border Protection is working, or is expected to work, with the Directorate of Science and Technology of the Department of Homeland Security to identify and test surveillance technology.
(4) A description of the specific surveillance technology to be deployed.
(5) The identification of any obstacles that may impede full implementation of such deployment.
(6) A detailed estimate of all costs associated with the implementation of such deployment and continued maintenance of such technologies.
(7) A description of how the Department of Homeland Security is working with the Federal Aviation Administration on safety and airspace control issues associated with the use of unmanned aerial vehicles in the National Airspace System.
(b) National Strategy for Border Security- Not later than one year after the date of the enactment of this Act, the Secretary of Homeland Security, in consultation with the heads of other appropriate Federal agencies, shall submit to the appropriate congressional committees a National Strategy for Border Security to achieve operational control over all ports of entry into the United States and the international land and maritime borders of the United States. The Secretary shall update the Strategy as needed and shall submit to the appropriate congressional committees, not later than 30 days after each such update, the updated Strategy. The National Strategy for Border Security shall include the following:
(1) The implementation timeline for the surveillance plan described in subsection (a).
(2) An assessment of the threat posed by terrorists and terrorist groups that may try to infiltrate the United States at points along the international land and maritime borders of the United States.
(3) A risk assessment of all ports of entry to the United States and all portions of the international land and maritime borders of the United States, except for ports of entry and facilities subject to vulnerability assessments under section 70102 or 70103 of title 46, United States Code, with respect to--
(A) preventing the entry of terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband into the United States; and
(B) protecting critical infrastructure at or near such ports of entry or borders.
(4) An assessment of all legal requirements that prevent achieving and maintaining operational control over the entire international land and maritime borders of the United States.
(5) An assessment of the most appropriate, practical, and cost-effective means of defending the international land and maritime borders of the United States against threats to security and illegal transit, including intelligence capacities, technology, equipment, personnel, and training needed to address security vulnerabilities.
(6) An assessment of staffing needs for all border security functions, taking into account threat and vulnerability information pertaining to the borders and the impact of new security programs, policies, and technologies.
(7) A description of the border security roles and missions of Federal, State, regional, local, and tribal authorities, and recommendations with respect to how the Department of Homeland Security can improve coordination with such authorities, to enable border security enforcement to be carried out in an efficient and effective manner.
(8) A prioritization of research and development objectives to enhance the security of the international land and maritime borders of the United States.
(9) A description of ways to ensure that the free flow of legitimate travel and commerce of the United States is not diminished by efforts, activities, and programs aimed at securing the international land and maritime borders of the United States.
(10) An assessment of additional detention facilities and bed space needed to detain unlawful aliens apprehended at United States ports of entry or along the international land borders of the United States in accordance with the National Strategy for Border Security required under this subsection and the mandatory detention requirement described in section 401 of this Act.
(11) A description of how the Secretary shall ensure accountability and performance metrics within the appropriate agencies of the Department of Homeland Security responsible for implementing the border security measures determined necessary upon completion of the National Strategy for Border Security.
(12) A timeline for the implementation of the additional security measures determined necessary as part of the National Strategy for Border Security, including a prioritization of security measures, realistic deadlines for addressing the security and enforcement needs, and resource estimates and allocations.
(c) Consultation- In creating the National Strategy for Border Security described in subsection (b), the Secretary shall consult with--
(1) State, local, and tribal authorities along the international land and maritime borders of the United States; and
(2) an appropriate cross-section of private sector and nongovernmental organizations with relevant expertise.
(d) Coordination- The National Strategy for Border Security described in subsection (b) shall be consistent with the National Strategy for Maritime Security developed pursuant to Homeland Security Presidential Directive 13.
(e) Immediate Action- Nothing in this section shall be construed to relieve the Secretary of the responsibility to take all actions necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States pursuant to section 101 of this Act or any other provision of law.
(f) Reporting of Implementing Legislation- After submittal of the National Strategy for Border Security described in subsection (b) to the appropriate congressional committees, such committees shall promptly report to their respective House legislation authorizing necessary security measures based on its evaluation of the National Strategy for Border Security.
(g) Appropriate Congressional Committee- For purposes of this title and section 301(b), the term `appropriate congressional committee' has the meaning given it in section 2(2) of the Homeland Security Act of 2002 (6 U.S.C. 101(2)).
(h) Rule of Construction- Nothing in this section shall be construed to alter, impact, diminish, or in any way undermine the authority of the Administrator of the Federal Aviation Administration to oversee, regulate, and control the safe and efficient use of the airspace of the United States.
SEC. 103. IMPLEMENTATION OF CROSS-BORDER SECURITY AGREEMENTS.
(a) In General- Not later than six months after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the appropriate congressional committees (as defined in section 102(g)) a report on the implementation of the cross-border security agreements signed by the United States with Mexico and Canada, including recommendations on improving cooperation with such countries to enhance border security.
(b) Updates- The Secretary shall regularly update the Committee on Homeland Security of the House of Representatives concerning such implementation.
SEC. 104. BIOMETRIC DATA ENHANCEMENTS.
Not later than October 1, 2006, the Secretary of Homeland Security shall--
(1) in consultation with the Attorney General, enhance connectivity between the IDENT and IAFIS fingerprint databases to ensure more expeditious data searches; and
(2) in consultation with the Secretary of State, collect all fingerprints from each alien required to provide fingerprints during the alien's initial enrollment in the integrated entry and exit data system described in section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1221 note).
SEC. 105. ONE FACE AT THE BORDER INITIATIVE.
Not later than 90 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to Congress a report--
(1) describing the tangible and quantifiable benefits of the One Face at the Border Initiative established by the Department of Homeland Security;
(2) identifying goals for and challenges to increased effectiveness of the One Face at the Border Initiative;
(3) providing a breakdown of the number of inspectors who were--
(A) personnel of the United States Customs Service before the date of the establishment of the Department of Homeland Security;
(B) personnel of the Immigration and Naturalization Service before the date of the establishment of the Department;
(C) personnel of the Department of Agriculture before the date of the establishment of the Department; or
(D) hired after the date of the establishment of the Department;
(4) describing the training time provided to each employee on an annual basis for the various training components of the One Face at the Border Initiative; and
(5) outlining the steps taken by the Department to ensure that expertise is retained with respect to customs, immigration, and agriculture inspection functions under the One Face at the Border Initiative.
SEC. 106. SECURE COMMUNICATION.
The Secretary of Homeland Security shall, as expeditiously as practicable, develop and implement a plan to ensure clear and secure two-way communication capabilities, including the specific use of satellite communications--
(1) among all Border Patrol agents conducting operations between ports of entry;
(2) between Border Patrol agents and their respective Border Patrol stations;
(3) between Border Patrol agents and residents in remote areas along the international land border who do not have mobile communications, as the Secretary determines necessary; and
(4) between all appropriate Department of Homeland Security border security agencies and State, local, and tribal law enforcement agencies.
SEC. 107. PORT OF ENTRY INSPECTION PERSONNEL.
In each of fiscal years 2007 through 2010, the Secretary of Homeland Security shall, subject to the availability of appropriations, increase by not less than 250 the number of positions for full-time active duty port of entry inspectors. There are authorized to be appropriated to the Secretary such sums as may be necessary for each such fiscal year to hire, train, equip, and support such additional inspectors under this section.
SEC. 108. CANINE DETECTION TEAMS.
In each of fiscal years 2007 through 2011, the Secretary of Homeland Security shall, subject to the availability of appropriations, increase by not less than 25 percent above the number of such positions for which funds were allotted for the preceding fiscal year the number of trained detection canines for use at United States ports of entry and along the international land and maritime borders of the United States.
SEC. 109. SECURE BORDER INITIATIVE FINANCIAL ACCOUNTABILITY.
(a) In General- The Inspector General of the Department of Homeland Security shall review each contract action related to the Department's Secure Border Initiative having a value greater than $20,000,000, to determine whether each such action fully complies with applicable cost requirements, performance objectives, program milestones, inclusion of small, minority, and women-owned business, and timelines. The Inspector General shall complete a review under this subsection with respect to a contract action--
(1) not later than 60 days after the date of the initiation of the action; and
(2) upon the conclusion of the performance of the contract.
(b) Report by Inspector General- Upon completion of each review described in subsection (a), the Inspector General shall submit to the Secretary of Homeland Security a report containing the findings of the review, including findings regarding any cost overruns, significant delays in contract execution, lack of rigorous departmental contract management, insufficient departmental financial oversight, bundling that limits the ability of small business to compete, or other high risk business practices.
(c) Report by Secretary- Not later than 30 days after the receipt of each report required under subsection (b), the Secretary of Homeland Security shall submit to the appropriate congressional committees (as defined in section 102(g)) a report on the findings of the report by the Inspector General and the steps the Secretary has taken, or plans to take, to address the problems identified in such report.
(d) Authorization of Appropriations- In addition to amounts that are otherwise authorized to be appropriated to the Office of the Inspector General, an additional amount equal to at least five percent for fiscal year 2007, at least six percent for fiscal year 2008, and at least seven percent for fiscal year 2009 of the overall budget of the Office for each such fiscal year is authorized to be appropriated to the Office to enable the Office to carry out this section.
(e) Action by Inspector General- In the event the Inspector General becomes aware of any improper conduct or wrongdoing in accordance with the contract review required under subsection (a), the Inspector General shall, as expeditiously as practicable, refer information related to such improper conduct or wrongdoing to the Secretary of Homeland Security or other appropriate official in the Department of Homeland Security for purposes of evaluating whether to suspend or debar the contractor.
SEC. 110. BORDER PATROL TRAINING CAPACITY REVIEW.
(a) In General- The Comptroller General of the United States shall conduct a review of the basic training provided to Border Patrol agents by the Department of Homeland Security to ensure that such training is provided as efficiently and cost-effectively as possible.
(b) Components of Review- The review under subsection (a) shall include the following components:
(1) An evaluation of the length and content of the basic training curriculum provided to new Border Patrol agents by the Federal Law Enforcement Training Center, including a description of how the curriculum has changed since September 11, 2001.
(2) A review and a detailed breakdown of the costs incurred by United States Customs and Border Protection and the Federal Law Enforcement Training Center to train one new Border Patrol agent.
(3) A comparison, based on the review and breakdown under paragraph (2) of the costs, effectiveness, scope, and quality, including geographic characteristics, with other similar law enforcement training programs provided by State and local agencies, non-profit organizations, universities, and the private sector.
(4) An evaluation of whether and how utilizing comparable non-Federal training programs, proficiency testing to streamline training, and long-distance learning programs may affect--
(A) the cost-effectiveness of increasing the number of Border Patrol agents trained per year and reducing the per agent costs of basic training; and
(B) the scope and quality of basic training needed to fulfill the mission and duties of a Border Patrol agent.
SEC. 111. AIRSPACE SECURITY MISSION IMPACT REVIEW.
Not later than 120 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the appropriate congressional committees a report detailing the impact the airspace security mission in the National Capital Region (in this section referred to as the `NCR') will have on the ability of the Department of Homeland Security to protect the international land and maritime borders of the United States. Specifically, the report shall address:
(1) The specific resources, including personnel, assets, and facilities, devoted or planned to be devoted to the NCR airspace security mission, and from where those resources were obtained or are planned to be obtained.
(2) An assessment of the impact that diverting resources to support the NCR mission has or is expected to have on the traditional missions in and around the international land and maritime borders of the United States.
SEC. 112. REPAIR OF PRIVATE INFRASTRUCTURE ON BORDER.
(a) In General- Subject to the amount appropriated in subsection (d) of this section, the Secretary of Homeland Security shall reimburse property owners for costs associated with repairing damages to the property owners' private infrastructure constructed on a United States Government right-of-way delineating the international land border when such damages are--
(1) the result of unlawful entry of aliens; and
(2) confirmed by the appropriate personnel of the Department of Homeland Security and submitted to the Secretary for reimbursement.
(b) Value of Reimbursements- Reimbursements for submitted damages as outlined in subsection (a) shall not exceed the value of the private infrastructure prior to damage.
(c) Reports- Not later than six months after the date of the enactment of this Act and every subsequent six months until the amount appropriated for this section is expended in its entirety, the Secretary of Homeland Security shall submit to the Committee on Homeland Security of the House of Representatives a report that details the expenditures and circumstances in which those expenditures were made pursuant to this section.
(d) Authorization of Appropriations- There shall be authorized to be appropriated an initial $50,000 for each fiscal year to carry out this section.
SEC. 113. BORDER PATROL UNIT FOR VIRGIN ISLANDS.
Not later than September 30, 2006, the Secretary of Homeland Security shall establish at least one Border Patrol unit for the Virgin Islands of the United States.
SEC. 114. REPORT ON PROGRESS IN TRACKING TRAVEL OF CENTRAL AMERICAN GANGS ALONG INTERNATIONAL BORDER.
Not later than one year after the date of the enactment of this Act, the Secretary of Homeland Security shall report to the Committee on Homeland Security of the House of Representatives on the progress of the Department of Homeland Security in tracking the travel of Central American gangs across the international land border of the United States and Mexico.
SEC. 115. COLLECTION OF DATA.
Beginning on October 1, 2006, the Secretary of Homeland Security shall annually compile data on the following categories of information:
(1) The number of unauthorized aliens who require medical care taken into custody by Border Patrol officials.
(2) The number of unauthorized aliens with serious injuries or medical conditions Border Patrol officials encounter, and refer to local hospitals or other health facilities.
(3) The number of unauthorized aliens with serious injuries or medical conditions who arrive at United States ports of entry and subsequently are admitted into the United States for emergency medical care, as reported by United States Customs and Border Protection.
(4) The number of unauthorized aliens described in paragraphs (2) and (3) who subsequently are taken into custody by the Department of Homeland Security after receiving medical treatment.
SEC. 116. DEPLOYMENT OF RADIATION DETECTION PORTAL EQUIPMENT AT UNITED STATES PORTS OF ENTRY.
(a) Deployment- Not later than one year after the date of the enactment of this Act, the Secretary of Homeland Security shall deploy radiation portal monitors at all United States ports of entry and facilities as determined by the Secretary to facilitate the screening of all inbound cargo for nuclear and radiological material.
(b) Report- Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report on the Department's progress toward carrying out the deployment described in subsection (a).
(c) Authorization of Appropriations- There is authorized to be appropriated to the Secretary to carry out subsection (a) such sums as may be necessary for each of fiscal years 2006 and 2007.
SEC. 117. CONSULTATION WITH BUSINESSES AND FIRMS.
With respect to the Secure Border Initiative and for the purposes of strengthening security along the international land and maritime borders of the United States, the Secretary of Homeland Security shall conduct outreach to and consult with members of the private sector, including business councils, associations, and small, minority-owned, women-owned, and disadvantaged businesses to--
(1) identify existing and emerging technologies, best practices, and business processes;
(2) maximize economies of scale, cost-effectiveness, systems integration, and resource allocation; and
(3) identify the most appropriate contract mechanisms to enhance financial accountability and mission effectiveness of border security programs.
SEC. 118. SENSE OF CONGRESS REGARDING ENFORCEMENT OF IMMIGRATION LAWS.
(a) Findings- Congress finds the following:
(1) A primary duty of the Federal Government is to secure the homeland and ensure the safety of United States citizens and lawful residents.
(2) As a result of the terrorist attacks on September 11, 2001, perpetrated by al Qaida terrorists on United States soil, the United States is engaged in a Global War on Terrorism.
(3) According to the National Commission on Terrorist Attacks Upon the United States, up to 15 of the 9/11 hijackers could have been intercepted or deported through more diligent enforcement of immigration laws.
(4) Four years after those attacks, there is still a failure to secure the borders of the United States against illegal entry.
(5) The failure to enforce immigration laws in the interior of the United States means that illegal aliens face little or no risk of apprehension or removal once they are in the country.
(6) If illegal aliens can enter and remain in the United States with impunity, so, too, can terrorists enter and remain while they plan, rehearse, and then carry out their attacks.
(7) The failure to control and to prevent illegal immigration into the United States increases the likelihood that terrorists will succeed in launching catastrophic or harmful attacks on United States soil.
(8) There are numerous immigration laws that are currently not being enforced.
(9) Law enforcement officers are often discouraged from enforcing the law by superiors.
(b) Sense of Congress- It is the sense of Congress that the President, the Attorney General, Secretary of State, Secretary of Homeland Security, and other Department Secretaries should immediately use every tool available to them to enforce the immigration laws of the United States, as enacted by Congress.
SEC. 119. SECURING ACCESS TO BORDER PATROL UNIFORMS.
Notwithstanding any other provision of law, all uniforms procured for the use of Border Patrol agents shall be manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured, as the case may be, in the United States.
SEC. 120. US-VISIT.
Not later than one year after the date of the enactment of this Act, the Secretary of Homeland Security, in consultation with the heads of other appropriate Federal agencies, shall submit to the appropriate congressional committees a timeline for--
(1) equipping all land border ports of entry with the US-VISIT system;
(2) developing and deploying at all land border ports of entry the exit component of the US-VISIT system; and
(3) making interoperable all immigration screening systems operated by the Department of Homeland Security.
SEC. 121. VOLUNTARY RELOCATION PROGRAM EXTENSION.
Section 5739(e) of title 5, United States Code, is amended by striking `7' and inserting `12'.
SEC. 122. COMPLETION OF BACKGROUND AND SECURITY CHECKS.
Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following:
`(i) Notwithstanding any other provision of law, the Secretary of Homeland Security, the Attorney General, and the courts may not--
`(1) grant or order the grant of adjustment of status of an alien to that of an alien lawfully admitted for permanent residence,
`(2) grant or order the grant of any other status, relief, protection from removal, or other benefit under the immigration laws, or
`(3) issue any documentation evidencing or related to such grant by the Secretary, the Attorney General, or any court,
until an IBIS check on the alien has been initiated at a Treasury Enforcement Communications System (TECS) access level of no less than Level 3, results from the check have been returned, and any derogatory information has been obtained and assessed, and until any other such background and security checks have been completed as the Secretary may require.
`(j) Notwithstanding any other provision of law, the Secretary of Homeland Security, the Attorney General, and the courts may not--
`(1) grant or order the grant of adjustment of status of an alien to that of an alien lawfully admitted for permanent residence,
`(2) grant or order the grant of any other status, relief, protection from removal, or other benefit under the immigration laws, or
`(3) issue any documentation evidencing or related to such grant by the Secretary, the Attorney General, or any court,
until any suspected or alleged fraud relating to the granting of any status (including the granting of adjustment of status), relief, protection from removal, or other benefit under this subsection has been fully investigated and found to be unsubstantiated.'.
TITLE II--COMBATTING ALIEN SMUGGLING AND ILLEGAL ENTRY AND PRESENCE
SEC. 201. DEFINITION OF AGGRAVATED FELONY.
(a) In General- Section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended--
(1) in subparagraph (N), by striking `paragraph (1)(A) or (2) of section 274(a) (relating to alien smuggling)' and inserting `section 274(a)' and by adding a semicolon at the end;
(2) in subparagraph (O), by striking `section 275(a) or 276 committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph', and inserting `section 275 or section 276 for which the term of imprisonment was at least one year';
(3) in subparagraph (U), by inserting before `an attempt' the following: `soliciting, aiding, abetting, counseling, commanding, inducing, procuring or'; and
(4) by striking all that follows subparagraph (U) and inserting the following:
`The term applies--
`(i) to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years;
`(ii) even if the length of the term of imprisonment is based on recidivist or other enhancements;
`(iii) to an offense described in this paragraph even if the statute setting forth the offense of conviction sets forth other offenses not described in this paragraph, unless the alien affirmatively shows, by a preponderance of evidence and using public records related to the conviction, including court records, police records and presentence reports, that the particular facts underlying the offense do not satisfy the generic definition of that offense; and
`(iv) regardless of whether the conviction was entered before, on, or after September 30, 1996, and notwithstanding any other provision of law (including any effective date).'.
(b) Effective Date- The amendments made by subsection (a) shall apply to offenses that occur before, on, or after the date of the enactment of this Act.
SEC. 202. ALIEN SMUGGLING AND RELATED OFFENSES.
(a) IN GENERAL- Section 274 of the Immigration and Nationality Act (8 U.S.C. 1324) is amended to read as follows:
`ALIEN SMUGGLING AND RELATED OFFENSES
`SEC. 274. (a) Criminal Offenses and Penalties-
`(1) PROHIBITED ACTIVITIES- Whoever--
`(A) assists, encourages, directs, or induces a person to come to or enter the United States, or to attempt to come to or enter the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to come to or enter the United States;
`(B) assists, encourages, directs, or induces a person to come to or enter the United States at a place other than a designated port of entry or place other than as designated by the Secretary of Homeland Security, regardless of whether such person has official permission or lawful authority to be in the United States, knowing or in reckless disregard of the fact that such person is an alien;
`(C) assists, encourages, directs, or induces a person to reside in or remain in the United States, or to attempt to reside in or remain in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to reside in or remain in the United States;
`(D) transports or moves a person in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to enter or be in the United States, where the transportation or movement will aid or further in any manner the person's illegal entry into or illegal presence in the United States;
`(E) harbors, conceals, or shields from detection a person in the United States knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to be in the United States;
`(F) transports, moves, harbors, conceals, or shields from detection a person outside of the United States knowing or in reckless disregard of the fact that such person is an alien in unlawful transit from one country to another or on the high seas, under circumstances in which the person is in fact seeking to enter the United States without official permission or lawful authority; or
`(G) conspires or attempts to commit any of the preceding acts,
shall be punished as provided in paragraph (2), regardless of any official action which may later be taken with respect to such alien.
`(2) CRIMINAL PENALTIES- A person who violates the provisions of paragraph (1) shall--
`(A) except as provided in subparagraphs (D) through (H), in the case where the offense was not committed for commercial advantage, profit, or private financial gain, be imprisoned for not more than 5 years, or fined under title 18, United States Code, or both;
`(B) except as provided in subparagraphs (C) through (H), where the offense was committed for commercial advantage, profit, or private financial gain--
`(i) in the case of a first violation of this subparagraph, be imprisoned for not more than 20 years, or fined under title 18, United States Code, or both; and
`(ii) for any subsequent violation, be imprisoned for not less than 3 years nor more than 20 years, or fined under title 18, United States Code, or both;
`(C) in the case where the offense was committed for commercial advantage, profit, or private financial gain and involved 2 or more aliens other than the offender, be imprisoned for not less than 3 nor more than 20 years, or fined under title 18, United States Code, or both;
`(D) in the case where the offense furthers or aids the commission of any other offense against the United States or any State, which offense is punishable by imprisonment for more than 1 year, be imprisoned for not less than 5 nor more than 20 years, or fined under title 18, United States Code, or both;
`(E) in the case where any participant in the offense created a substantial risk of death or serious bodily injury to another person, including--
`(i) transporting a person in an engine compartment, storage compartment, or other confined space;
`(ii) transporting a person at an excessive speed or in excess of the rated capacity of the means of transportation; or
`(iii) transporting or harboring a person in a crowded, dangerous, or inhumane manner,
be imprisoned not less than 5 nor more than 20 years, or fined under title 18, United States Code, or both;
`(F) in the case where the offense caused serious bodily injury (as defined in section 1365 of title 18, United States Code, including any conduct that would violate sections 2241 or 2242 of title 18, United States Code, if the conduct occurred in the special maritime and territorial jurisdiction of the United States) to any person, be imprisoned for not less than 7 nor more than 30 years, or fined under title 18, United States Code, or both;
`(G) in the case where the offense involved an alien who the offender knew or had reason to believe was an alien--
`(i) engaged in terrorist activity (as defined in section 212(a)(3)(B)); or
`(ii) intending to engage in such terrorist activity,
be imprisoned for not less than 10 nor more than 30 years, or fined under title 18, United States Code, or both; and
`(H) in the case where the offense caused or resulted in the death of any person, be punished by death or imprisoned for not less than 10 years, or any term of years, or for life, or fined under title 18, United States Code, or both.
`(3) EXTRATERRITORIAL JURISDICTION- There is extraterritorial Federal jurisdiction over the offenses described in this subsection.
`(b) Employment of Unauthorized Aliens-
`(1) IN GENERAL- Any person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens described in paragraph (2), shall be fined under title 18, United States Code, imprisoned for not more than 5 years, or both.
`(2) ALIEN DESCRIBED- A alien described in this paragraph is an alien who--
`(A) is an unauthorized alien (as defined in section 274A(h)(3)); and
`(B) has been brought into the United States in violation of subsection (a).
`(c) Seizure and Forfeiture-
`(1) IN GENERAL- Any property, real or personal, that has been used to commit or facilitate the commission of a violation of this section, the gross proceeds of such violation, and any property traceable to such property or proceeds, shall be subject to forfeiture.
`(2) APPLICABLE PROCEDURES- Seizures and forfeitures under this subsection shall be governed by the provisions of chapter 46 of title 18, United States Code, relating to civil forfeitures, including section 981(d) of such title, except that such duties as are imposed upon the Secretary of the Treasury under the customs laws described in that section shall be performed by such officers, agents, and other persons as may be designated for that purpose by the Secretary of Homeland Security.
`(d) Authority to Arrest- No officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees designated by the Secretary of Homeland Security, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.
`(e) Admissibility of Evidence-
`(1) PRIMA FACIE EVIDENCE IN DETERMINATIONS OF VIOLATIONS- Notwithstanding any provision of the Federal Rules of Evidence, in determining whether a violation of subsection (a) has occurred, any of the following shall be prima facie evidence that an alien involved in the violation lacks lawful authority to come to, enter, reside, remain, or be in the United States or that such alien had come to, entered, resided, remained or been present in the United States in violation of law:
`(A) Any order, finding, or determination concerning the alien's status or lack thereof made by a federal judge or administrative adjudicator (including an immigration judge or an immigration officer) during any judicial or administrative proceeding authorized under the immigration laws or regulations prescribed thereunder.
`(B) An official record of the Department of Homeland Security, Department of Justice, or the Department of State concerning the alien's status or lack thereof.
`(C) Testimony by an immigration officer having personal knowledge of the facts concerning the alien's status or lack thereof.
`(2) VIDEOTAPED TESTIMONY- Notwithstanding any provision of the Federal Rules of Evidence, the videotaped (or otherwise audiovisually preserved) deposition of a witness to a violation of subsection (a) who has been deported or otherwise expelled from the United States, or is otherwise unavailable to testify, may be admitted into evidence in an action brought for that violation if the witness was available for cross examination at the deposition and the deposition otherwise complies with the Federal Rules of Evidence.
`(f) Definitions- For purposes of this section:
`(1) The term `lawful authority' means permission, authorization, or license that is expressly provided for in the immigration laws of the United States or the regulations prescribed thereunder. Such term does not include any such authority secured by fraud or otherwise obtained in violation of law, nor does it include authority that has been sought but not approved. No alien shall be deemed to have lawful authority to come to, enter, reside, remain, or be in the United States if such coming to, entry, residence, remaining, or presence was, is, or would be in violation of law.
`(2) The term `unlawful transit' means travel, movement, or temporary presence that violates the laws of any country in which the alien is present, or any country from which or to which the alien is traveling or moving.'.
(b) CLERICAL AMENDMENT- The item relating to section 274 in the table of contents of such Act is amended to read as follows:
`Sec. 274. Alien smuggling and related offenses.'.
SEC. 203. IMPROPER ENTRY BY, OR PRESENCE OF, ALIENS.
Section 275 of the Immigration and Nationality Act (8 U.S.C. 1325) is amended--
(1) in the section heading, by inserting `UNLAWFUL PRESENCE;' after `IMPROPER TIME OR PLACE;';
(2) in subsection (a)--
(A) by striking `Any alien' and inserting `Except as provided in subsection (b), any alien';
(B) by striking `or' before (3);
(C) by inserting after `concealment of a material fact,' the following: `or (4) is otherwise present in the United States in violation of the immigration laws or the regulations prescribed thereunder,'; and
(D) by striking `6 months' and inserting `one year and a day';
(3) by amending subsection (c) to read as follows:
`(c)(1) Whoever--
`(A) knowingly enters into a marriage for the purpose of evading any provision of the immigration laws; or
`(B) knowingly misrepresents the existence or circumstances of a marriage--
`(i) in an application or document arising under or authorized by the immigration laws of the United States or the regulations prescribed thereunder, or
`(ii) during any immigration proceeding conducted by an administrative adjudicator (including an immigration officer or examiner, a consular officer, an immigration judge, or a member of the Board of Immigration Appeals);
shall be fined under title 18, United States Code, or imprisoned not more than 10 years, or both.
`(2) Whoever--
`(A) knowingly enters into two or more marriages for the purpose of evading any provision of the immigration laws; or
`(B) knowingly arranges, supports, or facilitates two or more marriages designed or intended to evade any provision of the immigration laws;
shall be fined under title 18, United States Code, imprisoned not less than 2 years nor more than 20 years, or both.
`(3) An offense under this subsection continues until the fraudulent nature of the marriage or marriages is discovered by an immigration officer.
`(4) For purposes of this section, the term `proceeding' includes an adjudication, interview, hearing, or review.'
(4) in subsection (d)--
(A) by striking `5 years' and inserting `10 years';
(B) by adding at the end the following: `An offense under this subsection continues until the fraudulent nature of the commercial enterprise is discovered by an immigration officer.'; and
(5) by adding at the end the following new subsections:
`(e)(1) Any alien described in paragraph (2)--
`(A) shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both, if the offense described in such paragraph was committed subsequent to a conviction or convictions for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony;
(B) whose violation was subsequent to conviction for a felony for which the alien received a sentence of 30 months or more, shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both; or
(C) whose violation was subsequent to conviction for a felony for which the alien received a sentence of 60 months or more, shall be fined under title 18, United States Code, imprisoned not more than 20 years, or both.
`(2) An alien described in this paragraph is an alien who--
`(A) enters or attempts to enter the United States at any time or place other than as designated by immigration officers;
`(B) eludes examination or inspection by immigration officers;
`(C) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact; or
`(D) is otherwise present in the United States in violation of the immigration laws or the regulations prescribed thereunder.
`(3) The prior convictions in subparagraph (A), (B), or (C) of paragraph (1) are elements of those crimes and the penalties in those subparagraphs shall apply only in cases in which the conviction (or convictions) that form the basis for the additional penalty are alleged in the indictment or information and are proven beyond a reasonable doubt at trial or admitted by the defendant in pleading guilty. Any admissible evidence may be used to show that the prior conviction is a qualifying crime, and the criminal trial for a violation of this section shall not be bifurcated.
`(4) An offense under subsection (a) or paragraph (1) of this subsection continues until the alien is discovered within the United States by immigration officers.
`(f) For purposes of this section, the term `attempts to enter' refers to the general intent of the alien to enter the United States and does not refer to the intent of the alien to violate the law.'.
SEC. 204. REENTRY OF REMOVED ALIENS.
Section 276 of the Immigration and Nationality Act (8 U.S.C. 1326) is amended--
(1) in subsection (a)--
(A) in paragraph (2), by striking all that follows `United States' the first place it appears and inserting a comma;
(B) in the matter following paragraph (2), by striking `imprisoned not more than 2 years,' and inserting `imprisoned for a term of not less than 1 year and not more than 2 years,';
(C) by adding at the end the following: `It shall be an affirmative defense to an offense under this subsection that (A) prior to an alien's reembarkation at a place outside the United States or an alien's application for admission from foreign contiguous territory, the Secretary of Homeland Security has expressly consented to the alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, such alien was not required to obtain such advance consent under this Act or any prior Act.';
(2) in subsection (b)--
(A) in paragraph (1), by striking `imprisoned not more than 10 years,' and insert `imprisoned for a term of not less than 5 years and not more than 10 years,';
(B) in paragraph (2), by striking `imprisoned not more than 20 years,' and insert `imprisoned for a term of not less than 10 years and not more than 20 years,';
(C) in paragraph (3), by striking `. or' and inserting `; or';
(D) in paragraph (4), by striking `imprisoned for not more than 10 years,' and insert `imprisoned for a term of not less than 5 years and not more than 10 years,'; and
(E) by adding at the end the following: `The prior convictions in paragraphs (1) and (2) are elements of enhanced crimes and the penalties under such paragraphs shall apply only where the conviction (or convictions) that form the basis for the additional penalty are alleged in the indictment or information and are proven beyond a reasonable doubt at trial or admitted by the defendant in pleading guilty. Any admissible evidence may be used to show that the prior conviction is a qualifying crime and the criminal trial for a violation of either such paragraph shall not be bifurcated.';
(3) in subsections (b)(3), (b)(4), and (c), by striking `Attorney General' and inserting `Secretary of Homeland Security' each place it appears;
(4) in subsection (c), by striking `242(h)(2)' and inserting `241(a)(4)'; and
(5) by adding at the end the following new subsection:
`(e) For purposes of this section, the term `attempts to enter' refers to the general intent of the alien to enter the United States and does not refer to the intent of the alien to violate the law.'.
SEC. 205. MANDATORY SENTENCING RANGES FOR PERSONS AIDING OR ASSISTING CERTAIN REENTERING ALIENS.
Section 277 of the Immigration and Nationality Act (8 U.S.C. 1327) is amended--
(1) by striking `Any person' and inserting `(a) Subject to subsection (b), any person'; and
(2) by adding at the end the following:
`(b)(1) Any person who knowingly aids or assists any alien violating section 276(b) to reenter the United States, or who connives or conspires with any person or persons to allow, procure, or permit any such alien to reenter the United States, shall be fined under title 18, United States Code, imprisoned for a term imposed under paragraph (2), or both.
`(2) The term of imprisonment imposed under paragraph (1) shall be within the range to which the reentering alien is subject under section 276(b).'.
SEC. 206. PROHIBITING CARRYING OR USING A FIREARM DURING AND IN RELATION TO AN ALIEN SMUGGLING CRIME.
Section 924(c) of title 18, United States Code, is amended--
(1) in paragraphs (1)(A) and (1)(D)(ii), by inserting `, alien smuggling crime,' after `crime of violence' each place it appears; and
(2) by adding at the end the following new paragraph:
`(6) For purposes of this subsection, the term `alien smuggling crime' means any felony punishable under section 274(a), 277, or 278 of the Immigration and Nationality Act (8 U.S.C. 1324(a), 1327, or 1328).'.
SEC. 207. CLARIFYING CHANGES.
(a) Exclusion Based on False Claim of Nationality-
(1) IN GENERAL- Section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(ii)) is amended--
(A) in the heading, by inserting `OR NATIONALITY' after `CITIZENSHIP'; and
(B) by inserting `or national' after `citizen' each place it appears.
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall take effect on the date of the enactment of this Act and shall apply to acts occurring before, on, or after such date.
(b) Sharing of Information- Section 290(b) of such Act (8 U.S.C. 1360(b)) is amended--
(1) by inserting `, or as to any person seeking any benefit or privilege under the immigration laws,' after `United States';
(2) by striking `Service' and inserting `Secretary of Homeland Security'; and
(3) by striking `Attorney General' and inserting `Secretary'.
(c) Exceptions Authority- Section 212(a)(3)(B)(ii) of such Act (8 U.S.C. 1182(a)(3)(B)(ii)) is amended by striking `Subclause (VII)' and inserting `Subclause (IX)'.
SEC. 208. VOLUNTARY DEPARTURE REFORM.
(a) Encouraging Aliens to Depart Voluntarily-
(1) AUTHORITY- Subsection (a) of section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) is amended--
(A) by amending paragraph (1) to read as follows:
`(1) IN LIEU OF REMOVAL PROCEEDINGS- The Secretary of Homeland Security may permit an alien voluntarily to depart the United States at the alien's own expense under this subsection, in lieu of being subject to proceedings under section 240, if the alien is not described in section 237(a)(2)(A)(iii) or section 237(a)(4).';
(B) by striking paragraph (3);
(C) by redesignating paragraph (2) as paragraph (3);
(D) by inserting after paragraph (1) the following new paragraph:
`(2) PRIOR TO THE CONCLUSION OF REMOVAL PROCEEDINGS- After removal proceedings under section 240 are initiated, the Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense under this subsection, prior to the conclusion of such proceedings before an immigration judge, if the alien is not described in section 237(a)(2)(A)(iii) or section 237(a)(4).'; and
(E) in paragraph (4), by striking `paragraph (1)' and inserting `paragraphs (1) and (2)'.
(2) VOLUNTARY DEPARTURE PERIOD- Such section is further amended--
(A) in subsection (a)(3), as redesignated by paragraph (1)(C)--
(i) by amending subparagraph (A) to read as follows:
`(A) IN LIEU OF REMOVAL- Subject to subparagraph (C), permission to depart voluntarily under paragraph (1) shall not be valid for a period exceeding 120 days. The Secretary of Homeland Security may require an alien permitted to depart voluntarily under paragraph (1) to post a voluntary departure bond, to be surrendered upon proof that the alien has departed the United States within the time specified.';
(ii) in subparagraph (B), by striking `subparagraphs (C) and (D)(ii)' and inserting `subparagraphs (D) and (E)(ii)';
(iii) in subparagraphs (C) and (D), by striking `subparagraph (B)' and inserting `subparagraph (C)' each place it appears;
(iv) by redesignating subparagraphs (B), (C), and (D) as subparagraphs (C), (D), and (E), respectively; and
(v) by inserting after subparagraph (A) the following new subparagraph:
`(B) PRIOR TO THE CONCLUSION OF REMOVAL PROCEEDINGS- Permission to depart voluntarily under paragraph (2) shall not be valid for a period exceeding 60 days, and may be granted only after a finding that the alien has established that the alien has the means to depart the United States and intends to do so. An alien permitted to depart voluntarily under paragraph (2) must post a voluntary departure bond, in an amount necessary to ensure that the alien will depart, to be surrendered upon proof that the alien has departed the United States within the time specified. An immigration judge may waive posting of a voluntary departure bond in individual cases upon a finding that the alien has presented compelling evidence that the posting of a bond will be a serious financial hardship and the alien has presented credible evidence that such a bond is unnecessary to guarantee timely departure.'; and
(B) in subsection (b)(2), by striking `60 days' and inserting `45 days'.
(3) VOLUNTARY DEPARTURE AGREEMENTS- Subsection (c) of such section is amended to read as follows:
`(c) Conditions on Voluntary Departure-
`(1) VOLUNTARY DEPARTURE AGREEMENT- Voluntary departure will be granted only as part of an affirmative agreement by the alien. A voluntary departure agreement under subsection (b) shall include a waiver of the right to any further motion, appeal, application, petition, or petition for review relating to removal or relief or protection from removal.
`(2) CONCESSIONS BY THE SECRETARY- In connection with the alien's agreement to depart voluntarily under paragraph (1), the Secretary of Homeland Security in the exercise of discretion may agree to a reduction in the period of inadmissibility under subparagraph (A) or (B)(i) of section 212(a)(9).
`(3) FAILURE TO COMPLY WITH AGREEMENT AND EFFECT OF FILING TIMELY APPEAL- If an alien agrees to voluntary departure under this section and fails to depart the United States within the time allowed for voluntary departure or fails to comply with any other terms of the agreement (including a failure to timely post any required bond), the alien automatically becomes ineligible for the benefits of the agreement, subject to the penalties described in subsection (d), and subject to an alternate order of removal if voluntary departure was granted under subsection (a)(2) or (b). However, if an alien agrees to voluntary departure but later files a timely appeal of the immigration judge's decision granting voluntary departure, the alien may pursue the appeal instead of the voluntary departure agreement. Such appeal operates to void the alien's voluntary departure agreement and the consequences thereof, but the alien may not again be granted voluntary departure while the alien remains in the United States.'.
(4) ELIGIBILITY- Subsection (e) of such section is amended to read as follows:
`(e) Eligibility-
`(1) PRIOR GRANT OF VOLUNTARY DEPARTURE- An alien shall not be permitted to depart voluntarily under this section if the Secretary of Homeland Security or the Attorney General previously permitted the alien to depart voluntarily.
`(2) ADDITIONAL LIMITATIONS- The Secretary of Homeland Security may by regulation limit eligibility or impose additional conditions for voluntary departure under subsection (a)(1) for any class or classes of aliens. The Secretary or Attorney General may by regulation limit eligibility or impose additional conditions for voluntary departure under subsection (a)(2) or (b) for any class or classes of aliens. Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and section 1361 and 1651 of such title, no court may review any regulation issued under this subsection.'.
(b) Avoiding Delays in Voluntary Departure-
(1) ALIEN'S OBLIGATION TO DEPART WITHIN THE TIME ALLOWED- Subsection (c) of section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c), as amended by subsection (a), is further amended by adding at the end the following new paragraph:
`(4) VOLUNTARY DEPARTURE PERIOD NOT AFFECTED- Except as expressly agreed to by the Secretary of Homeland Security in writing in the exercise of the Secretary's discretion before the expiration of the period allowed for voluntary departure, no motion, appeal, application, petition, or petition for review shall affect, reinstate, enjoin, delay, stay, or toll the alien's obligation to depart from the United States during the period agreed to by the alien and the Secretary.'.
(2) NO TOLLING- Subsection (f) of such section is amended by adding at the end the following new sentence: `Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and section 1361 and 1651 of such title, no court shall have jurisdiction to affect, reinstate, enjoin, delay, stay, or toll the period allowed for voluntary departure under this section.'.
(c) Penalties for Failure to Depart Voluntarily-
(1) PENALTIES FOR FAILURE TO DEPART- Subsection (d) of section 240B of the Immigration and Nationality Act (8 U.S.C. 229c) is amended to read as follows:
`(d) Penalties for Failure to Depart- If an alien is permitted to depart voluntarily under this section and fails voluntarily to depart from the United States within the time period specified or otherwise violates the terms of a voluntary departure agreement, the following provisions apply:
`(1) CIVIL PENALTY-
`(A) IN GENERAL- The alien will be liable for a civil penalty of $3,000.
`(B) SPECIFICATION IN ORDER- The order allowing voluntary departure shall specify the amount of the penalty, which shall be acknowledged by the alien on the record.
`(C) COLLECTION- If the Secretary of Homeland Security thereafter establishes that the alien failed to depart voluntarily within the time allowed, no further procedure will be necessary to establish the amount of the penalty, and the Secretary may collect the civil penalty at any time thereafter and by whatever means provided by law.
`(D) INELIGIBILITY FOR BENEFITS- An alien will be ineligible for any benefits under this title until any civil penalty under this subsection is paid.
`(2) INELIGIBILITY FOR RELIEF- The alien will be ineligible during the time the alien remains in the United States and for a period of 10 years after the alien's departure for any further relief under this section and sections 240A, 245, 248, and 249.
`(3) REOPENING-
`(A) IN GENERAL- Subject to subparagraph (B), the alien will be ineligible to reopen a final order of removal which took effect upon the alien's failure to depart, or the alien's violation of the conditions for voluntary departure, during the period described in paragraph (2).
`(B) EXCEPTION- Subparagraph (A) does not preclude a motion to reopen to seek withholding of removal under section 241(b)(3) or protection against torture.
The order permitting the alien to depart voluntarily under this section shall inform the alien of the penalties under this subsection.'.
(2) IMPLEMENTATION OF EXISTING STATUTORY PENALTIES- The Secretary of Homeland Security shall implement regulations to provide for the imposition and collection of penalties for failure to depart under section 240B(d) of the Immigration and Nationality Act, as amended by paragraph (1).
(d) Effective Dates-
(1) IN GENERAL- Except as provided in paragraph (2), the amendments made by this section shall apply with respect to all orders granting voluntary departure under section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) made on or after the date that is 180 days after the date of the enactment of this Act.
(2) EXCEPTION- The amendment made by subsection (b)(2) shall take effect on the date of the enactment of this Act and shall apply with respect to any petition for review which is entered on or after such date.
SEC. 209. DETERRING ALIENS ORDERED REMOVED FROM REMAINING IN THE UNITED STATES UNLAWFULLY AND FROM UNLAWFULLY RETURNING TO THE UNITED STATES AFTER DEPARTING VOLUNTARILY.
(a) Inadmissible Aliens- Paragraph (9) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) is amended--
(1) in subparagraph (A)(i), by striking `within 5 years of' and inserting `before, or within 5 years of,'; and
(2) in subparagraph (A)(ii) by striking `within 10 years of' and inserting `before, or within 10 years of,'.
(b) Failure to Depart, Apply for Travel Documents, or Appear for Removal or Conspiracy to Prevent or Hamper Departure- Section 274D of such Act (8 U.S.C. 1324d) is amended--
(1) in subsection (a), by striking `Commissioner' and inserting `Secretary of Homeland Security'; and
(2) by adding at the end the following new subsection:
`(c) Ineligibility for Relief-
`(1) IN GENERAL- Subject to paragraph (2), unless a timely motion to reopen is granted under section 240(c)(6), an alien described in subsection (a) shall be ineligible for any discretionary relief from removal pursuant to a motion to reopen during the time the alien remains in the United States and for a period of 10 years after the alien's departure.
`(2) EXCEPTION- Paragraph (1) does not preclude a motion to reopen to seek withholding of removal under section 241(b)(3) or protection against torture.'.
(c) Deterring Aliens From Unlawfully Returning to the United States After Departing Voluntarily- Section 275(a) of such Act (8 U.S.C. 1325(a)) is amended by inserting `or following an order of voluntary departure' after `a subsequent commission of any such offense'.
(d) Effective Dates-
(1) IN GENERAL- The amendments made by subsections (a) and (b) shall take effect on the date of the enactment of this Act with respect to aliens who are subject to a final order of removal, whether the removal order was entered before, on, or after such date.
(2) VOLUNTARY DEPARTURE- The amendment made by subsection (c) shall take effect on the date of the enactment of this Act and shall apply with respect to conduct occurring on or after such date.
SEC. 210. ESTABLISHMENT OF THE FORENSIC DOCUMENTS LABORATORY.
(a) In General- The Secretary of Homeland Security shall establish a Fraudulent Documents Center (to be known as the Forensic Document Laboratory) to carry out the following:
(1) Collect information from Federal, State, and local law enforcement agencies, and foreign governments on the production, sale, distribution, and use of fraudulent documents intended to be used to enter, travel, or remain within the United States unlawfully.
(2) Maintain the information described in paragraph (1) in a comprehensive database.
(3) Maintain a repository of genuine and fraudulent travel and identity document exemplars.
(4) Convert the information collected into reports that provide guidance to government officials in identifying fraudulent documents being used to enter into, travel within, or remain in the United States.
(5) Develop a system for distributing these reports on an ongoing basis to appropriate Federal, State, and local law enforcement agencies.
(b) Distribution of Information- The Forensic Document Laboratory shall distribute its reports to appropriate Federal, State, and local law enforcement agencies on an ongoing basis.
SEC. 211. SECTION 1546 AMENDMENTS.
(a) Section 1546(a) of title 18, United States Code, is amended in the first paragraph by inserting `distributes (or intends to distribute),' before `or falsely' the first place it appears.
(b) Section 1546(a) of title 18, United States Code, is amended in the first paragraph by inserting `distributed,' before `or falsely' the second place it appears..
SEC. 212. MOTIONS TO REOPEN OR RECONSIDER.
(a) Exercise of Discretion- Section 240(c) of the Immigration and Nationality Act (8 U.S.C. 1229a(c)) is amended--
(1) by adding at the end of paragraph (5) the following new subparagraph:
`(D) DISCRETION- The decision to grant or deny a motion to reconsider is committed to the Attorney General's discretion.'; and
(2) by adding at the end of paragraph (6) the following new subparagraph:
`(D) DISCRETION- The decision to grant or deny a motion to reopen is committed to the Attorney General's discretion.'.
(b) Prima Facie Eligibility for Protection From Removal to Alternative Country of Removal not Previously Considered- Section 240(c) of the Immigration and Nationality Act (8 U.S.C. 1229a) is further amended by adding at the end of paragraph (6) the following new subparagraph:
`(E) SPECIAL RULE FOR ALTERNATIVE COUNTRIES OF REMOVAL- The time and numerical limitations specified in this paragraph shall not apply if--
`(i) the Secretary seeks to remove the alien to an alternative or additional country of removal under subparagraph (D) or (E) of section 241(b)(2) that had not been considered during the alien's prior removal proceedings;
`(ii) the alien's motion to reopen is filed within 30 days after the date the alien receives notice of the Secretary's intention to remove the alien to that country; and
`(iii) the alien establishes a prima facie case that the alien is entitled by law to withholding of removal under section 241(b)(3) or protection under the Convention Against Torture with respect to that particular country.'.
(c) Effective Date- This section, and the amendments made by this section, shall apply to motions to reopen and reconsider that are filed on or after the date of the enactment of this Act in removal, deportation, or exclusion proceedings, regardless of whether a final administrative order is entered before, on, or after such date.
SEC. 213. REFORM OF PASSPORT, VISA, AND IMMIGRATION FRAUD OFFENSES.
Chapter 75 of title 18, United States Code is amended to read as follows:
`CHAPTER 75--PASSPORT, VISA, AND IMMIGRATION FRAUD
`1541. Trafficking in passports.
`1542. False statement in an application for a passport.
`1543. Forgery and unlawful production of a passport.
`1544. Misuse of a passport.
`1545. Schemes to defraud aliens.
`1546. Immigration and visa fraud.
`1547. Attempts and conspiracies.
`1548. Increased penalties for certain offenses.
`1549. Seizure and forfeiture.
`1550. Additional jurisdiction.
`1551. Additional venue.
`1552. Definitions.
`1553. Authorized law enforcement activities.
`Sec. 1541. Trafficking in passports
`(a) Whoever, during any three-year period--
`(1) knowingly and without lawful authority produces, issues, or transfers 10 or more passports; or
`(2) knowingly forges, counterfeits, alters, or falsely makes 10 or more passports; or
`(3) knowingly secures, possesses, uses, receives, buys, or sells 10 or more passports, knowing the passports to be forged, counterfeited, altered, falsely made, stolen, procured by fraud, issued, or designed for the use of another, or produced or issued without lawful authority; or
`(4) knowingly completes, mails, prepares, presents, signs, or submits 10 or more applications for a United States passport (including any supporting documentation) knowing the applications to contain any false statement or representation;
shall be fined under this title, imprisoned not less than 3 years nor more than 20 years, or both.
`(b) Whoever knowingly and without lawful authority produces, counterfeits, secures, possesses, or uses any official paper, seal, hologram, image, text, symbol, stamp, engraving, plate, or other material used to make a passport shall be fined under this title, imprisoned not less than 3 years nor more than 20 years, or both.
`Sec. 1542. False statement in an application for a passport
`Whoever knowingly--
`(1) makes any false statement or representation in an application for a United States passport (including any supporting documentation); or
`(2) completes, mails, prepares, presents, signs, or submits an application for a United States passport (including any supporting documentation) knowing it to contain any false statement or representation; or
`(3) causes or attempts to cause the production of a passport by means of any fraud or false application for a United States passport (including any supporting documentation), when such production occurs or would occur at a facility authorized by the Secretary of State for the production of passports;
shall be fined under this title, imprisoned not more than 15 years, or both.
`Sec. 1543. Forgery and unlawful production of a passport
`(a) Whoever--
`(1) knowingly forges, counterfeits, alters, or falsely makes any passport; or
`(2) knowingly transfers any passport knowing it to be forged, counterfeited, altered, falsely made, stolen, or to have been produced or issued without lawful authority;
shall be fined under this title, imprisoned not more than 15 years, or both.
`(b) Whoever knowingly and without lawful authority--
`(1) produces, issues, authorizes, or verifies a passport in violation of the laws, regulations, or rules governing the issuance of the passport; or
`(2) produces, issues, authorizes, or verifies a United States passport for or to any person not owing allegiance to the United States; or
`(3) transfers or furnishes a passport to a person for use when such person is not the person for whom the passport was issued or designed;
shall be fined under this title, imprisoned not more than 15 years, or both.
`Sec. 1544. Misuse of a passport
`(a) Whoe |
